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The actual perpetrator of a criminal offence – the person who fired the gun, or burgled the house – is known as the “principal”.  A person who assists or encourages the principal to commit the crime is known as an accessory or secondary party, and he can be held liable for the principal’s act under common law principles of secondary liability. 

Secondary liability is a common law doctrine, which means it has been developed by the courts over the years.  Until the 1980s, convicting someone as an accessory to a crime on the basis of secondary liability required proof of the following elements:

  • The conduct element: that the accessory had encouraged or assisted the principal to commit the offence.  The act of assistance or encouragement may be “infinitely varied”. 
  • The mental element: that the accessory had the intention to assist or encourage the commission of the crime, in the knowledge of any existing facts necessary for the principal’s act to be criminal (the “mental” element).  If the crime required a particular intent, the accessory must have intended to assist or encourage the principal to act with such intent.

The mental element required to convict the accessory under secondary liability was therefore broadly similar to what was required to convict the principal.

However, during the 1980s, a new “strand” of secondary liability emerged, which became known as “parasitical accessory liability” or – more commonly – “joint enterprise”.  This placed a new emphasis on the accessory’s foresight of what the principal might do, rather than on his intention of how the principal should act.

‘Parasitical accessory liability’ (PAL) was developed by the courts (beginning with the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168)) as a specific subset of secondary liability.  PAL concerned the situation where two (or more) people, D1 and D2, agreed to commit a criminal offence (A).  If D1 committed an additional offence (B), D2 could also, in certain circumstances, have been guilty of offence B. So for example, offence A might be burglary and offence B might be murder.  D2 was liable for offence B if he foresaw the possibility that D1 might commit crime B. If he did foresee that possibility and continued to participate in offence A, D2 was guilty of offence B, even if he did not intend to assist or encourage crime B at all.

Joint enterprise, in this sense of PAL, was controversial and much criticised. This was particularly so where offence B was murder, as this carries a mandatory life sentence.  The courts therefore had limited discretion to hand down appropriate sentences to secondary participants.

In 2016, however, the Supreme Court ruled in the case of Jogee that the courts had taken a ‘wrong turn’ in pursuing the concept of PAL.  The Supreme Court ruled that the previous interpretation of the law (following Chan Wing-Siu) was wrong, and that there should be no separate form of accessorial liability known as PAL.  D2 should not be liable for offence B unless he intended to assist or encourage D1 to offence B. Whether he did have such an intention or not will be for the jury to decide. The jury might consider D2’s foresight to be evidence of such an intent, but foresight would no longer be sufficient in and of itself.

The Supreme Court in Jogee considered the position of those convicted under the “old” law as set out in Chan Wing-Siu.  It said that its decision in Jogee would not render such convictions “invalid”, but that those affected would instead have to make an out-of-time application to the Court of Appeal or seek a review by the Criminal Cases Review Commission (CCRC).  The Supreme Court said that the Court of Appeal would only grant permission to appeal if it considered the applicant had suffered “substantial injustice” and that “it will not do so simply because the law applied has now been declared to have been mistaken”.

Since Jogee there have been a handful of appeals to the Court of Appeal regarding cases decided under the “old” law.  On 31 October 2016 the Court of Appeal gave its decision (in the case of Johnson and others) in several appeals brought post-Jogee.  Each of these appeals was unsuccessful. The Court said:

The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be re-opened. It also takes into account the interests of the victim (or the victim’s family), particularly in cases where death has resulted and closure is particularly important. 

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